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This Paper Reviews the Recent Work by Australian Labour Lawyers That Has Embraced the ‘New Regulation’ and in Particular the Idea of Law As Regulation

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This Paper Reviews the Recent Work by Australian Labour Lawyers That Has Embraced the ‘New Regulation’ and in Particular the Idea of Law As Regulation Macquarie Law Journal (2008) Vol 8 21 RECONCEIVING LABOUR LAW: THE LABOUR MARKET REGULATION PROJECT ∗ ANDREW FRAZER This paper reviews the recent work by Australian labour lawyers that has embraced the ‘new regulation’ and in particular the idea of law as regulation. This approach has recast the academic study of labour law as being concerned with regulation of the labour market. While much of this work has concentrated on expanding the field of labour law to include many areas of law affecting the labour market (beyond the employer-employee relationship), the work has also developed the view of law as a mechanism of state regulation. The paper examines how the ‘regulatory turn’ in Australian labour law has affected the accounts it provides, and assesses the connection between seeing the labour market as the field of study and the adoption of a regulatory perspective to the study of labour law. INTRODUCTION Labour law, in Australia as elsewhere, is undergoing a transformation. In the last decade or so there has been a change in purpose and orientation, from the elucidation of legal rules governing employment and industrial relations, to the analysis of regulatory strategies and mechanisms affecting the labour market. The change in academic approach has been prompted by the tide of changes in work relations associated with globalisation and economic restructuring. We have seen the rise of the post-industrial, internationalised ‘new economy’ involving ‘networked, boundaryless (sometimes virtual) organizations’ which utilise floating professionals on a project-by-project basis.1 There has also been an increase in so- called ‘Mac-jobs’ involving work that is precarious, dependent and socially marginalised. Workers in these jobs are engaged on a casual or contract basis, develop few portable skills, experience or contacts (and so have no real career ∗ Senior Lecturer, Faculty of Law, University of Wollongong. Email: [email protected]. I would like to thank Mark Bray for his comments on an earlier version of this article. 1 Linda Dickens, ‘Problems of Fit: Changing Employment and Labour Regulation’ (2004) 42 British Journal of Industrial Relations 595, 595. 22 Macquarie Law Journal (2008) Vol 8 development) and often work unsociable hours. In the face of both these developments, traditional regulation through union organisation and collective bargaining is difficult or impossible. The prevailing attitude in business and politics towards the state’s role in industrial relations has moved away from collectivism and protective intervention. This has been reflected in the reduction of legal protection for trade unions and industrial action. There has been increasing concern that the reach of the nation state itself is no longer sufficient to deal with the problems that are being fomented by the modern international economic order.2 The explosion of comparative studies in the last decade testifies to the commonality of issues facing most countries, including questions of disciplinary boundaries, ‘modernization’ and the autonomy of national traditions.3 The success of neoliberalism in dismantling the institutions and legislative basis of collective rights has led to a questioning whether there is a future for labour law, and (assuming that there is) the search for a new foundation. Some scholars have proposed greater emphasis on individual employment rights, which are grounded in social ideals such as citizenship, autonomy and decent work.4 The regulatory function of labour law in this view is to provide a bulwark against the influence of markets. A few writers see possibilities for social goals to be integrated into the operation of labour markets. Significantly, such a view stems from seeing law as only part of the total regulatory picture, and by viewing labour law as extending beyond its traditional protective function. Labour law then becomes the means for providing the institutional framework and mechanisms for redressing the deficiencies of markets for labour, and for promoting goals of flexibility and competitiveness in a socially sustainable way.5 Many of these new approaches to labour law build on the interdisciplinary field of ‘new regulation’ studies, which encompasses the variety of techniques by which state agencies and private actors influence their environment and co-participants. 2 Massimo D’Antona, ‘Labour Law at the Century’s End: An Identity Crisis?’ in Joanne Conaghan, Richard Michael Fischl and Karl Klare (eds) Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) 31. 3 Alain Supiot, ‘Law and Labour: A World Market of Norms?’ (2006) 39 New Left Review 109; Silvana Sciarra, ‘Evolution and the “Autonomy” of Labour Law’ in The Evolution of Labour Law 1992–2003 (2005) 21 <http://ec.europa.eu/employment_social/labour_law/docs/generalreport_en.pdf> at 31 Jan 2008; Silvana Sciarra, ‘Modernization” of Labour Law: A Current European Debate’ (2007) <http://www.ilo.org/public/english/bureau/inst/download/sciarra.pdf> at 1 Feb 2008. 4 Bob Hepple, ‘The Future of Labour Law’ (1995) 24 Industrial Law Journal 303; Bob Hepple, ‘Four Approaches to the Modernisation of Individual Employment Rights’ in Roger Blanpain and Manfred Weiss (eds) Changing Industrial Relations and Modernisation of Labour Law (2003) 181; Ronald McCallum, ‘Collective Labour Law, Citizenship and the Future’ (1998) 22 Melbourne University Law Review 42; Ron McCallum, ‘Justice at Work: Industrial Citizenship and the Corporatization of Australian Labour Law’ (2006) 48 Journal of Industrial Relations 131. 5 Alan Hyde, ‘What is Labour Law?’ in Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (2006) 37; Hugh Collins, ‘Regulating the Employment Relation for Competitiveness’ (2001) 30 Industrial Law Journal 17. Reconceiving Labour Law: The Labour Market Regulation Project 23 Regulation studies reflects the new mode of governance that has emerged since the 1980s, which itself accompanied demands for an end to traditional state controls associated with the welfare state (deregulation) and their replacement by more distanced and concessional techniques (self-regulation). In following these changes, many of the social sciences have taken a ‘regulatory turn’, which follows an institutionalist approach based on the study of regulation through networks of relations and the embeddedness of state and business actions in historically conditioned social practices.6 In the context of legal studies, this means recognising that legal rules and norms are only part of the web of regulatory forces, but that law often functions as the medium through which such forces are articulated and coordinated.7 In Australia over the last decade and more, a body of scholarship has built up around a program of redefining labour law as being concerned with labour market regulation. This program has two dimensions. First, it involves expanding the field or scope of labour law to embrace all aspects of the labour market, rather than the employer-employee relationship as it has been traditionally conceived. Second, there is a methodological change in perspective or focus towards regulation rather than law – including all aspects of the state’s activities rather than the legal institutions and sources conventionally studied by academic lawyers. The twofold change in the disciplinary field has been claimed to have both positive and normative justifications. By moving beyond the traditional coverage and assumptions, it is said that the actual inputs, operation and effects of labour law will be more readily revealed, allowing for a more systematic and realistic analysis. Also, seeing law in its wider context of forces affecting the labour market should allow for a more realistic formulation of the social ends to which labour law can properly contribute. As Arup puts it, the regulatory perspective ‘asks us to look at our field of labour law both in a more expansive and more strategic way than we might conventionally do.’8 The reconceptualisation of labour law in terms of labour market regulation results from the attempt by many scholars to adopt a more inclusive perspective. It may be seen as part of a wide-ranging program within legal studies to find ‘a place at the table’ for a larger range of people and interests than 9 has been recognised by either traditional rights or state agencies. 6 Robert Baldwin, Colin Scott and Christopher Hood, ‘Introduction’ in Robert Baldwin, Colin Scott and Christopher Hood (eds), A Reader on Regulation (1998); Christine Parker and John Braithwaite, ‘Regulation’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 123. 7 John Braithwaite and Christine Parker, ‘Conclusion’ in Christine Parker et al (eds), Regulating Law (2004) 274. 8 Christopher Arup, ‘Labour Law as Regulation: Promises and Pitfalls’ (2001) 14 Australian Journal of Labour Law 229, 229. 9 For a similar critique of consumer law, drawing on regulation theory, see Vijaya Nagarajan, ‘Reconceiving Regulation: Finding a Place for the Consumer’ (2007) 15 Competition and Consumer Law Journal 93; for other areas of law see the other contributions to this journal issue. 24 Macquarie Law Journal (2008) Vol 8 This paper charts the development of the labour market regulation program and its impact on labour law scholarship in Australia. Its purpose is to contribute to this program by highlighting the contribution made by the substantial volume of work already produced, and to identify directions that might be taken in taking the project further. It is argued that a strong connection emerges between the labour market reorientation and the adoption of a regulation approach. However, most of the studies so far have remained focused on state-based regulation rather than adopting a more sociologically oriented institutional approach. In part this is because of the adoption of the labour market as object of study, leading to a concentration on state programs. The continuing state-centredness is also a result of the program being constructed within the academic discipline of law with its focus on formal state- derived norms, even though at the same time it seeks to transcend that discipline.
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